Illegally suspended Judge Gąciarek may return to adjudication. The new chamber of the Supreme Court will decide
Judge Piotr Gąciarek’s suspension may be lifted in a few days and he may return to work in the capital’s court. This may be the decision of the new Supreme Court chamber. If Gąciarek returns to adjudication, only Judge Maciej Ferek from Krakow will still be suspended.
Whether Regional Court Judge Piotr Gąciarek’s suspension will be lifted will be known at 8.30 am on 18 January 2023. This is the date until which the bench of the Professional Liability Chamber of the Supreme Court deferred the promulgation of the judgment in his case.
The new chamber heard the appeal from Gąciarek and his defence attorneys against the decision of the illegal Disciplinary Chamber of the Supreme Court on Thursday 12 January. It suddenly suspended him in November 2021 for implementing the judgments of the CJEU and the ECtHR. This was punishment for refusing to adjudicate with a neo-judge. The judge has now been on suspension for 14 months.
The illegal Chamber did not manage to hear his appeal because it was liquidated by the Law and Justice (PiS) party. The case was taken over by the Professional Liability Chamber. We write about the details of Thursday’s session in Gąciarek’s case later in this article.
If Gąciarek’s suspension is lifted in a week, he will be the fifth judge suspended by the Disciplinary Chamber to return to work. And such a decision is likely, because the suspensions of Paweł Juszczyszyn from the District Court in Olsztyn, Maciej Rutkiewicz from the District Court in Elbląg, as well as Krzysztof Chmielewski and Igor Tuleya, both from the Regional Court in Warsaw, were lifted earlier. They were all suspended by the illegal Chamber for independent judgments with which the authorities were not pleased and for implementing the judgments of the ECtHR and CJEU.
Maciej Ferek of the Regional Court in Kraków is still suspended. There is no date in his case yet. Whereas the reinstatement of all suspended judges is one of the conditions for the payment of billions of euros from the National Recovery Plan to Poland.
What Judge Gąciarek was suspended for
Judge Piotr Gąciarek is an experienced criminal law judge from the Regional Court in Warsaw. He is also the deputy head of Iustitia in Warsaw. He is committed to defending the free courts and is not afraid of criticizing Zbigniew Ziobro and his people in the prosecutor’s office and in the courts. He also defends other repressed judges. He did so by speaking in front of the Supreme Court and in front of the National Prosecutor’s Office building when he was defending Igor Tuleya, who was being prosecuted by the prosecutor’s office.
He experienced reprisals for this in 2021 and continues to experience them. Even though he has not been adjudicating for over a year. Judge Gąciarek fell foul of Ziobro’s people by refusing to adjudicate with Neo-Judge Stanisław Zdun, who is currently a member of the illegal, politicized neo-NCJ of the second term.
The judge first filed a dissenting opinion in May 2021 to a ruling he issued with Zdun, among others. Gąciarek wrote that the ruling was issued by a defective bench because it contained a neo-judge appointed by the neo-NCJ. And it arises from the judgments of the Polish Supreme Court and the Supreme Administrative Court, as well as the CJEU and later also the ECtHR, that the neo-NCJ is not an independent body, in accordance with the Constitution and European law.
Therefore, it cannot give correct nominations to neo-judges. In a dissenting opinion, Gąciarek listed why the neo-NCJ cannot be considered a legitimate body. He was instantly transferred for this on disciplinary charges from the criminal division to the executive division, where the decisions of other judges are executed.
Gąciarek was not intimidated. In September 2021, he again refused to adjudicate with Zdun (this bench was appointed even before the judge was transferred to the executive division). He was suspended for a month for that by the president of the Regional Court in Warsaw at that time, Piotr Schab. The court president suspended Gąciarek even though the CJEU issued an interim measure on 14 July 2021 suspending the activities of the illegal Disciplinary Chamber and the provisions of the Muzzle Act allowing judges to be prosecuted for implementing ECtHR and CJEU judgments.
The judge was also disciplined for refusing to adjudicate with Zdun. He received two disciplinary charges from Deputy Disciplinary Commissioner Michał Lasota for contesting the legality of the neo-judge and the neo-NCJ.
The Disciplinary Chamber decided to continue Gąciarek’s suspension in mid-November 2021. It suspended him even though, according to the interim measures of the CJEU, as well as the CJEU judgment of 15 July 2021, it should have stopped operating (the Court ruled in the judgment that the Chamber is not a court).
Regardless of this, Gąciarek is facing disciplinary action for criticizing Ziobro’s people and commenting on Twitter about the changes Ziobro is making in the courts.
Gąciarek does not recognize the new Chamber as a legitimate court
Piotr Gąciarek’s defence attorney’s appealed against his suspension and their appeal was heard on 12 January 2023 by the new Professional Liability Chamber, which replaced the liquidated Disciplinary Chamber. The case is being handled by a bench from the new Chamber, still as a provisional bench appointed by Małgorzata Manowska, a neo-judge in the position of First President of the Supreme Court. They are: legal Supreme Court Judge Wiesław Kozielewicz, legal Supreme Court Judge Małgorzata Wąsek-Wiaderek (she is the rapporteur in the case) and lay judge Jolanta Jarząbek.
This is the second time this bench is approaching Gąciarek’s case of suspension. The first time the Chamber dealt with it was in September 2022, but the judge filed a motion to transfer the case to the legal Criminal Chamber and a motion to remove Judge Wiesław Kozielewicz from the bench. Gąciarek and his defence attorneys filed these motions because they do not recognize the new Chamber as being a legal court. It contains neo-judges of the Supreme Court. This is how the judge is also questioning the way in which the temporary membership of the new Chamber was appointed. Because they were appointed by Manowska, with respect to whom there are allegations as to whether she was legally elected president of the Supreme Court and whether she could appoint temporary members.
Meanwhile, Gąciarek is requesting the removal of Kozielewicz because he has no problem adjudicating with neo-judges of the Supreme Court. Kozielewicz also filed a dissenting opinion to the historic resolution of the full bench of the Supreme Court of January 2020, which contested the legality of the Disciplinary Chamber, the neo-NCJ and the neo-judges.
The hearing on Gąciarek’s suspension was postponed in September 2021 for these reasons. Only the motion to transfer the case to the Criminal Chamber has been declined to date. This motion was considered by a legal judge of the Supreme Court. However, the motion to remove Kozielewicz was not considered. Even so, Gąciarek’s appeal was set for 12 January.
However, the judge did not appear at the session. Because he consistently does not recognize the new Supreme Court Chamber as being a legitimate court. He waited outside the courtroom. One of his defence attorneys, a legal Supreme Court Judge from the Criminal Chamber, Jarosław Matras and the deputy disciplinary commissioner, Michal Lasota entered the courtroom. Additionally, there were journalists and citizens from the Free Prosecution initiative, which gives support to repressed judges and prosecutors.
The new Supreme Court Chamber rejects the motions and continues
At the beginning, the bench needed to consider the formal motions. Because the defence attorneys wanted to adjourn the hearing for several reasons. Two of Gąciarek’s defence attorneys were not present – the head of Iustitia, Professor Krystian Markiewicz and Attorney Michał Jabłoński. They explained that they had only recently received notice of the hearing and had other activities planned for that day.
They also argued that the motion to remove Kozielewicz had not been considered to date. It became clear why at the hearing. Kozielewicz explained that it was to be considered by a legal judge of the Supreme Court, Krzysztof Staryk. However, he had suspended the case in January because he had sent a legal question to the Supreme Court in which he wants a decision to be made as to whether he is a judge who is duly appointed to adjudicate in the Professional Liability Chamber.
Staryk is one of 11 people from the Supreme Court appointed by President Andrzej Duda to the permanent membership of the new chamber. However, he has numerous reservations about the legality of the Chamber, as well as the procedure in which it was appointed. That is why he is refusing to adjudicate in it. And now he wants the larger membership of the Supreme Court to respond as to whether he was properly appointed to that Chamber by the President.
Because Andrzej Duda did not send him a decision regarding the appointment, but issued a wholesale decision on the appointment of all 11 people (6 neo-judges of the Supreme Court and 5 legal judges of the Supreme Court). Duda chose them from the 33 judges and neo-judges of the Supreme Court who had previously been drawn. That is why it is argued that the new chamber is illegal because the judges were appointed to it by a politician.
However, the bench ruling in Gąciarek’s case – which is a temporary bench – acknowledged that it can continue because the provisions of the Criminal Procedures Code allow this. And if Kozielewicz is removed in the future, the entire proceedings and the judgment passed will be considered invalid. Interestingly, even the deputy disciplinary commissioner supported the adjournment on the grounds that the motion to remove Kozielewicz had not been considered.
The bench of the new chamber also acknowledged that it could continue without the two absent defence attorneys, because Gąciarek’s third defence attorney, Supreme Court Judge Jarosław Matras, was present in the courtroom. The procedure also allows this.
Judge Matras: The Disciplinary Chamber was not a court
The substantive hearing began after the motions of the defence attorneys were rejected. The judge’s defence attorney, Jarosław Matras took the floor. He started by saying that the Disciplinary Chamber was not a court. He therefore requested the acknowledgement that the chamber’s decision to suspend the judge does not exist as a ruling. Matras deliberately said that it was a non-binding decision.
He also filed a motion for the new Chamber to substantively assess the decision of the President of the Regional Court in Warsaw, Piotr Schab, to suspend Gąciarek for a month. Whether it was justified and expedient. This is important, because, as the decision of the chamber does not exist, Schab’s decision needed to be assessed. And according to Judge Matras, it is illegal and groundless. Because according to Article 130 of the Act on the Courts – this provision was the basis for the suspension – judges cannot be removed from adjudication for a month for procedural decisions and judgments.
Judge Matras reiterated that the Polish Supreme Court and the Supreme Administrative Court, as well as the CJEU and the ECtHR, had ruled that the Disciplinary Chamber was not a court. ‘It was a body created within the structure of the Supreme Court,’ emphasized Matras.
He asked what Judge Gąciarek had done wrong that he had been suspended. And he replied that he had demanded action in accordance with the law. That he did not want to adjudicate with a neo-judge because such a bench would have been defective and would have issued a defective judgment for which the litigants could claim damages from the State Treasury. This is how Gąciarek spoke up for the procedural rights of the parties, as they have the right to a trial before an independent and impartial court established by law.
‘Such a view of the judge, which he inferred from the ECtHR ruling in the Reczkowicz case, should be respected.’ said Jarosław Matras. He emphasized that Gąciarek could not be suspended for that.
In their appeal against the suspension decision, the defence attorneys also argued that the Chamber had exceeded the 30-day deadline for assessing Schab’s decision. So it could not assess Schab’s decision. That Gąciarek had not been notified by the Disciplinary Chamber of the hearing regarding his suspension and could not defend himself. That the application of European law and the implementation of the judgments of the CJEU and the ECtHR was considered a disciplinary offence. Although the CJEU had suspended the provisions of the Muzzle Act allowing judges to be punished for applying European law. They also argued that these provisions of the Muzzle Act are in conflict with the Constitution and EU law and should be disregarded.
Lasota: Gąciarek was spreading chaos and anarchy
Deputy Disciplinary Commissioner Michał Lasota, a nominee of Minister Ziobro known for prosecuting independent judges for just about anything, then took the floor. He does this with Chief Disciplinary Commissioner Piotr Schab and the second deputy, Przemysław Radzik. At a session in the new Chamber, Lasota admitted that Gąciarek had already been suspended for too long.
But he wanted to uphold the illegal Chamber’s decision. Because ‘it is not up to Gąciarek to decide who he is to adjudicate with and who the judge is’. Lasota said: ‘It was up to him to be a member of the bench and consider the case. And not to wonder who is a judge. Had it not been for the president of the regional court, Gąciarek would have continued to behave in that way, which would have resulted in chaos and anarchy.’
Translated by Roman Wojtasz
The article was published in Polish in OKO.press on January 13, 2023.